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Criminal Procedure Notes

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Seminar 1 - Introduction to Criminal Procedure Article: David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001): Ch. 5 Social changes to crime control and criminal justice:

* Series of accommodations and adjustments undertaken by various agencies in response to the specific pressures, problems or opportunities these agencies encountered. Some experienced from outside the system while others within the framework of criminal justice agencies. (pg.2).

* The distinction b/w 'inside' and 'outside' became a wider gap. th

* Over the last period of the 20 century, new emergence, new philosophies of punishment and new objectives emerged to improve crime policy and the new political and cultural context in which it operates - to invent new and more effective mechanisms of crime control and new ways of representing crime and justice. (pg. 2).

* Substantial challenge to a society's institutional arrangements creates practical problems and uncertainties - with one field of social action (crime control) appearing to align itself with structures that developed in other fields - reason b/c of actions of actors and agencies involved. State actors with involvement of institutions have a central significance for the public at large (pg. 30. High crime rates as a normal social fact:

* From post-war period to 1970's high crime rates were viewed as a social fact and integrated in society. However, b/w 1960's and 1990's it leveled off by introduction a notion of 'fear of crime'.

* High crimes rates have become pattered regularities. And recorded crime statistics confirmed the annual increase of crime rates. The myth of the sovereign state and its monopoly of crime control:

* The myth that sovereign state is capable of delivering 'law and order' and controlling crime within its territorial boundaries. (pg. 5).

* But this myth of law and order created challenges for the states as their sovereignty was already under attack on a number of different aspects. Adaptive Responses:

* Over time adaptive solutions became increasingly more politicized, more expressive alternatives. (pg. 7).

* 6 main types of adaptation: o Rationalization for justice o Commercialization of justice o Defining deviance down o Redefining success o Concentrating upon consequences o Redistributing responsibility o New style of criminology reasoning

* Rationalization for justice: (pg. 8) o For administrators in charge of criminal justice agencies, high rates of crime brought immediate problems of increased caseloads and strained resources along with loss of public confidence. o Criminal justice agencies had to expand their capacities and transform their practices in order to keep up with the caseload. o Increased in crime experienced as the failure of crime control. o Police depts. began to professionalize themselves by investing in technology made available by the Law Enforcement Administration Authority (LEAA) by instituting the '911 policing' made possible via phone and car. o Consequence: widened the gap b/w police and the public. o Systematization of the criminal justice by use of IT, operation models and computerized data as a new mechanism for promoting inter-agency co-ordination became important in the 80's and 90's. o The system allowed greater measure of central planning and control. Enhanced gov'ts capacity to pursue system wide policy objectives. o By the 90's the new infrastructure of computers, information technology and detailed gathering gave rise to a new way of 'smart' crime control as police

sentencers and prison authorities began to use computers and geo-coded data to focus decision-making and target interventions.


Commercialization of justice: (pg. 9) o Privatization and commercialization took place in the criminal justice system. o 80's and 90's gov't and states reliance on the private sector increased as they contracted commercial businesses to privatize crime control by providing new prison facilities.


Defining Deviance Down: (pg. 10) o With high crime rates and case loads criminal justice agencies began to limit the demands by: o Filtered complaints and cases out of the system or lowering the degree to which certain behaviors are criminalized and penalized. o Emerged in a number of contexts: o On-the street decisions of police officers o Standardize procedures that managers developed guide decisions about prosecution o Probation o Parole o These patterns of decision-making were 'in house'.


Redefining success: (pg. 10) o State agencies were criticized publicly for scaling down expectations by redefining their aims. o States admit their failings, emphasize the constraints that affect the system and point to the limits of their capacity to control crime. o Agencies began to shift responsibility and outcome onto the public.


Concentrate upon consequences: (pg. 11) o State agencies give more priority to dealing with the consequences of crime rather than it's cause. o 'Victim policy" emerged: o Victims were awarded a series of rights and voice in the criminal proceedings. o Fear of Crime: o Always been a constraint of crime o Police research studies showed failed measures in reducing crime rates but succeeded the reporting of reduced levels of fear and insecurity, which gave rise to a new policy.


Relocating and redefining responsibilities (pg. 12 - 13) o Crime control is 'beyond the state' as institutions of criminal justice state were severely limited in their crime control capacities and cannot by themselves maintain "law and order". But also 'beyond the state' as their area crime control mechanisms operating outside the state's boundaries and independent of its policies. o The community as the solution: o Solution to the problem of limiting the criminal justice state was to shift the workload of crime-control to the community - public at large. o 'Community' in these instances was merely 'non-custodial' or 'occurring outside of prisons and reformatories'. They were less costly than institutionalized polices, less stigmatizing and less liable to deprive the offender of the supports of family and work. o Purpose: to enlist the activities of non-state actors, linking up their informal crime-control practices to more formal activities of the police themselves. And enhance policies and encouraged the community in crime prevention. (pg. 13). o The responsibilization strategy: o State agencies linked with actors of the 'private sector' and the 'community'. o It involved a way of thinking and a variety of techniques designed to change the manner in which gov't act upon crime.




Redistributing the task of crime control, forming alliances and arranging crime control duties to follow crime-generating behaviors were the new and institutionally radical goals being pursed. The criminal justice state, is shedding its 'sovereign' style of gov't by 'top-down' approach and developing a form of rule close to that described by Michel Foucault as 'governmentality' - involved the enlistment of others, the shaping of incentives and the creation of new forms of cooperation action. (pg. 13).

The new criminologies of everyday life: (pg. 14 - 15) o Significant developments in the last two decades have been the emergence of a new style of criminological thinking that has succeeded in attracting the interest of gov't officials. o This new way of thinking, rapidly increasing has become the key strands of official criminology, shaping gov't polices and organizational practice in both the US and UK. o The new criminologies of everyday life are set of cognate theoretical frameworks that include routine activity theory, crime as opportunity, lifestyle analysis, situational crime prevention, and some versions of rational choice theory (pg. 14 - 15). o The new criminologies tend to view crime 'prospectively' and in 'aggregate' terms, for the purpose of 'calculating risks' and 'shaping preventative measures'. o This shift creates new ways of understanding and acting upon crime.


Non-adaptive responses: Denial and Acting out (pg. 15- 16) o Denial: o As crime and punishment came to be highly controversial issues, gov't and opposition parties compete to establish their credentials as being tough on crime and concerned with public safety, and capable of restoring morality, order and discipline in the face of the corrosive social change. o Instead of acknowledging the limits of sovereign states and adapting to them, the political agenda governing high profile polices was to 'restore public confidence' in criminal justice while asserting the values of moral discipline, individual responsibility, and respect of authority. (pg. 16). o Acting out: o Legislative measures described as a form of 'acting out' - they engage in a form of 'impulsive' and 'unreflective action', avoiding realistic recognition of underlying problems. o Policymaking becomes a form of acting out that downplays the complexities and long-term character of 'effective' crime control in favor of the immediate gratifications of a more 'expressive' alternative. (pg. 17). o Administrators and criminal justice professionals are often against legislation of this kind that dilutes its effects in the process of implantation. But conflict b/w political and administrative actors work in both directions, and elected officials often have a difficult relation to the 'adaptive measures'.


The contradictions of official criminology: (pg. 19) o In the 80's and 90's, gov'ts relied upon criminology assumptions. At the level of individual agencies and gov't depart. these contradictions are experienced as struggles b/w different actors, different levels of organization, and different ways of framing problems. o There is a 'criminology of the self', that characterizes offenders as normal, rational consumers, just like us: and there is a 'criminology of the other', of the threatening outcast, the fearsome stranger, the excluded and the resented.


Conclusion: (pg. 20) o Adaption, denial and acting out, if these responses to the crime control predicament have produced polices that, however incoherent in their own terms, fit remarkably well into the broader framework of contemporary social and economic policy, it would be a 'miracle of system alignment'.

Brown et al 1.3 and 3.1 Sect. 1.3 The Criminal Process and Competing Versions of What the Law "Is"



'Criminal law is constituted in such a way as to segregate the substantially exclude coverage of criminal procedure'. We are faced with the need to develop principles of selectivity. In criminal law the onus (burden of proof) is on the prosecution.

1.3.1 Pre-Trial Process:

* Substantive criminal laws apply to both courts and the public. Versions of them apply with varying degrees of self-consciousness, by members of the public in relation to their own behavior and in making decisions on whether or not to report an event to the police.

* Rape or date rape will not be reported due to the scrutiny the person will face within the criminal process.

* Enforcement agencies make decisions on what the criminal law "is", intertwined with decisions about the extent to which it should be enforced. If they decide to bring charges, they will initially determine the precise nature of the charge.

Crown prosecutors play a similar role in deciding what counts to lay in an indictment following criminal proceedings

* Procedural - discretionary aspects to the pre-trial criminal process

* Substantive - rules of criminal law applied by the courts. o Pressures and tendencies organized around class, race, gender, cultural and other relations, structure the exercise of discretion so as to produce selective application and development of the substantive criminal law. o Substantive criminal laws do not simply "play upon" the "facts" produced by the operation of the pre-trial criminal process.
! The police and prosecutors have developed their own versions - at least of what enforceable criminal law "is".
! These influence the way in which they exercise their discretions and play a vital part in determining the "facts" which are produced for consideration by the courts. They also have an impact upon the development of criminal law at an appeal court level.


Discretionary Decisions: Under the powers of arrest: o the criterion will usually be whether or not there is a reasonable suspicion that an offence has been committed. Involves questions of fact rather than law, but where the offense is framed in broad terms, such as "offensive behavior", questions of fact and law become intertwined. o The decisions of the police officers will rest fundamentally on their version(s) of what the law of "offensive behavior", in the context of arrest, "is". o In absence of prosecution, the version of the law will not be subject to any further review outside of the police force, except in the unlikely event that the person arrested brings civil proceedings. o Jury instructions given by the trial judge cannot be readily assumed that the jury understands it. o Division b/w fact and law is not clear. Criminal laws often use flexible standards which have to be worked out on a case-by-case basis by juries and magistrates. They are frequently asked what is "reasonable" or whether or not somebody has acted "dishonestly".

1.3.2 The Trial:

* Decisions made by trial judges about definitions of criminal offenses are subject to appeal and adjustment.

* Decision on a point of law made by a judge or magistrate is only "wrong" if it is corrected on appeal.

* Opportunities for the prosecution to appeal against a finding of not guilty are limited.

* Law makers must be conscious of the relationship which exists b/w the requirements of substantive law and the practices used by enforcement agencies to collect and extract evidence to meet those requirements.

* Criminalization is the process of identifying an act deemed dangerous to the dominant social order and designating it as criminally punishable.

Sect. 3.1 The Criminal Process - Introduction: Themes pg. 115




Crime is a problematic, contingent and historical. How crime and criminal law are apprehended is dependent on a complex range of historical, economic, political, ideological, cultural, moral, and social forces, dependent on the ways knowledge about crime is produced within various institutions and networks of power relations. The themes outlined in this chapter will illuminate the blurred and complex relationship b/w substantive law and procedural context.

3.1.1 The Ubiquity of discretion

* "The law" in the form of statutory provisions and common law formulations governing the criminal process is more of a resource, guide to action, than some form of prescriptive code to be "implemented".

* Examine the nature of this discretion - those of police discretion whether to arrest or summons a suspect, the non-justiciabilty of selective law enforcement, police move-on powers, regulating police discretion in juvenile justice, and the discretion to prosecute.

3.1.2 Two tiers of justice:

* Term used by McBarnet (Conviction (1981) at 123), is used to highlight the significant differences between summary justice administered by magistrates and higher court justice by judges.

* McBarnet: the tier of higher courts "is for public consumption, the arena where the ideology of justice is put on display. The other, lower courts, deliberately structured in defiance of the ideology of justice, is concerned less with subtle ideological messages than with direct control" (at 153).

* McBarnet's discussion enables us to give greater weight to summary justice, to see it as more important than one might gather from traditional criminal law texts.

* Popular cultural explorations of law, crime and justice focus on the operations of the higher courts.

* Meanwhile the vast bulk and an increasing proportion of criminal cases, including many that have traditionally been heard in the higher courts, are dealt with summarily.

* Under this theme, we can examine effects of this concentration on higher court justice and attempt to redress it by stressing the centrality, expansion and changing nature of summary justice.

3.1.3: The process of punishment

* The traditional standpoint about the criminal process views punishment as being administered only after a formal adversarial adjudication of guilt, against backdrop of the presumption of innocence.

* Malcolm Feeley challenged this view directly in The Process is Punishment (1979).

* The distinction between pre-trial processes and formal adjudication of guilt as a pre-condition for punishment was somewhat illusory.

* For many, punishment, in the form of arrest, detention, denial of bail, prolonged pre-trial custody in police cells precedes formal legal adjudication of guilt.

* This is especially true in relation to summary justice, where the adjudication of guilt will only lead to a fine.

3.1.4: The (in)visibility of pre-trial processes

* Connects with the above themes; a common approach conceives of pre-trial processes as essentially preliminary and administrative, geared to investigation suspects before the courts for legal adjudication.

* Result: the extensive exercise of police discretion, in its actual exercise, is effectively non-justiciable.

* Over the past few decades, there has been increasing recognition that the various exercises of police and prosecutorial discretion do not merely involve the finding of evidence but have a constitutive role in the construction of a case.

* Mallard case illustrates the involved setting aside evidence that does not support the case and is therefore thought to be irrelevant.

* It might also involve conscious decisions to construct evidence in a way so as to assist the prosecution.

* Thus, there has been legal and political struggle to render pre-trial criminal justice processes open to greater visibility.

3.1.5: Technocratic Justice: the drive for efficiency

* Debates over cost, waste, efficiency, managerial competence, technological

* Innovation, the removal of restrictive and archaic practices have been felt in the sphere of criminal justice; in line with the drive for micro-economic reform of Australian institutions.

* Effects on civil sphere: cost considerations underwrite increasing recourse to mediation methods.






Effects on criminal: similar developments might be to move to on-the-spot fines for a range of less serious summary offences. Overabundance of violations and low clear-up rates have led to a situation where some sorts of acquisitive activities such as break and enter are now mainly regulated through the actuarial technologies of insurance rather than through the criminal law. The drive to 'rationalise' the operations of an expensive criminal justice system might be illustrated by developments such as the massive expansion in summary jurisdiction, restrictions on committal proceedings, the empirical demise of jury trial and increasing attacks on the "inefficiency" and "irrationality" of jury trial, increased pressures to produce and reward guilty pleas through discounts and sentence-indication schemes, continual struggles over legal aid funding, etc. On the other hand, such developments are far from uniform, are neither easily justified nor easily implemented, and are often bitterly contested. Efficiency and technocratic considerations will not always prove politically popular and may cause significant legitimation problems for the criminal justice system, as has arguably proved to be the case with the experiment in sentence indication in NSW.

3.1.6: Therapeutic Jurisprudence and procedural justice

* Therapeutic jurisprudence is partly at odds with that of technocratic justice

* This forms part of a wider trend towards non-adversarial forms of justice.

* Seeks to assess the therapeutic and counter-therapeutic consequences of law and the ways in which it was implemented.

* These notions have become influential in a diverse range of developments e.g. intervention program orders attached to bail conditions, mental health courts, circle sentencing and other forms of "restorative justice" developments.

* A significant component of therapeutic jurisprudence is an emphasis on procedural justice:

* Following work of Tom Tyler in Why People Obey the Law: Procedural justice, legitimacy and compliance (2006).

* Found that in USA, evaluations of experiences with police and courts were based more on the perceived o Identified 7 issues which affected whether citizens saw justice procedures are fair:

* Degree of which authorities were motivated to be fair

* Judgments of the honesty of authorities

* Degree of which authorities followed ethical principles of conduct

* Extent to which opportunities for representation were provided

* The quality of the decisions made

* The opportunity for error correction

* Whether the authorities behaved in a biased fashion

3.1.7: Elements of a fair trial

* Implied right to fair trial is also somewhat at odds with drive to technocratic justice, as expounded by the HCA in cases such as Dietrich.

* Dietrich may be read as indicating an increasing consitutionalisation of various areas of the law as HCA has moved to elaborate certain forms of implied rights in the Aus Constitution.

* But limited to the fact that Aus does not have a Bill of Rights.

* Developments towards fair trial principles are also confronted directly by the introduction of detention without trial for certain categories of especially dangerous offenders, such as those convicted of certain sex and terrorism offences.

3.1.8: Internationalism and Human Rights

* Human rights discourse is having increasing effect through the incorporation of international treaties in domestic law, the ratification of international Protocols which give citizens of nation states an avenue of complaint to a UN Committee and through developments such as the ICCR (International Covenant on Civil and Political Rights).

* The absence of either a constitutional or statutory Bill or Rights distinguishes Australia from comparable countries such as USA, Canada, NZ, and UK.

3.1.9: Miscarriages of Justice

* Police malpractice, media prejudice, inadequacy of appeal processes, the dangers of reliance on certain forms of evidence (expert, forensic, eye witness, etc) and other contributing factors have come under scrutiny in the aftermath of Australian cases such as Chamberlain, Anderson, Pohl, Stafford and Mallard.


Under this theme, we examine some of the key practices producing miscarriages of justice, the adequacy of appeal processes, and reviews of conviction.

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